In 2008, Congress passed the "FISA Amendments Act," or FAA. This
expanded the government's ability to use electronic surveillance on
people located abroad—and, apparently, any Americans they're speaking
to. A lawsuit was quickly filed by an array of civil rights groups,
labor unions, and media organizations, including Amnesty International,
the American Civil Liberties Union, The Nation magazine, the Service Employees International Union, and an international group of criminal defense lawyers.
The Foreign Intelligence Surveillance Act, or FISA, was originally
designed to allow spying on the communications of foreign powers. But
after the September 11 attacks, FISA courts were authorized to target a
wide array of international communications, including communications
between Americans and foreigners. While it's tough to know exactly what
kinds of communications are being picked up under the FAA rules (because
it's all been kept secret), the evidence suggests there has been widespread dragnet-style surveillance of phone calls originating in the US.
In this case, the plaintiffs' groups said their communications were
likely being scooped up by the government's expanded spying powers in
violation of their constitutional rights. Today's decision, a 5-4 vote
along ideological lines by the nation's highest court, definitively ends
their case. In an opinion [PDF]
by Justice Samuel Alito, the court ruled that these groups don't have
the right to sue at all, because they can't prove they were being spied
on.
One by one, the legal challenges to expanded government spying in the
post-9/11 era are failing in court. In another case—in which an
organization did have concrete evidence of spying—the government came up
with another legal theory
to make the lawsuit go away. In a third case being litigated in a San
Francisco federal court, government lawyers are trying to shut down a lawsuit brought by EFF lawyers by asserting the state secrets privilege.

Clapper v. Amnesty International: The case below

Even though they
couldn't prove they were being surveilled, all of the plaintiffs argued
that they were likely interacting with persons and groups outside the
country who were
being wiretapped—foreign sources for reporters, activists, and
defendants in court cases. They argued they were getting wrapped up in
an expanding government initiative of foreign and domestic data
collection, and their due-process rights were being violated.
They lost their case in New York district court when a federal judge
said they didn't have standing to sue because they couldn't prove they
were personally being surveilled. They had nothing more than an
"abstract fear that their communications will be monitored" under the
new law, wrote the judge.
That order was overturned by a New York federal appeals court, which
held that the groups were indeed being injured and should be allowed to
sue. They had to take (costly) extra steps to avoid surveillance, and
their fear that government agents were listening to them was not
"fanciful, paranoid or otherwise unreasonable." It was "extremely
likely" that the government would indeed "undertake broad-based
surveillance" under the new law, and the advocacy and media groups had
"good reason to believe that their communications" would be intercepted,
said the appeals panel. The government didn't dispute the fact that
those groups were communicating with "likely targets" of surveillance
under the new law.

Justices say spying fears of journalists and lawyers are “speculative”

Justice Alito's opinion attacks the group's two main theories supporting their right to sue.
First, he says, there's doubt about whether any surveillance of these
groups will take place at all. "It is speculative whether the
Government will imminently target communications to which respondents
are parties," he states.
Accordingly, it is no surprise that respondents fail to offer any evidence that their communications
have been monitored under §1881a, a failure that substantially undermines their standing theory.
The groups believe the government will target "their foreign
contacts," but even that belief is speculative, he notes. "Respondents
have no actual knowledge of the Government's... targeting practices."
The opinion quotes statements from journalist Christopher Hedges,Scott McKay (an Idaho lawyer who successfully defended a Saudi national against terrorism charges), and previously represented Khalid Sheik Mohammed,
the highest-profile detainee at Guantanamo. The journalist and lawyer
state that because of the FISA Amendments Act, they have been forced to
operate under the assumption that their communications are being
monitored.
But because the plaintiffs "have set forth no specific facts
demonstrating" their foreign contacts will be monitored, their argument
fails. Even if the government did try to get their communications, they
have no idea whether the FISA court would authorize that surveillance,
the opinion states. Thus, the plaintiffs' theory rests of a "speculative
chain of possibilities" that don't establish any impending injury.
As to the costs and burdens of avoiding potential surveillance, Alito
is dismissive. "Respondents cannot manufacture standing merely by
inflicting harm on themselves based on their fears of hypothetical
future harm that is not certainly impending," Alito writes.
The majority opinion was joined by Justices Antonin Scalia, Clarence
Thomas, and Anthony Kennedy, as well as Chief Justice John Roberts.Four justices
disagreed with today's ruling. Journalists, lawyers, and human rights
researchers who collect information from foreigners "with knowledge of
circumstances related to terrorist activities" are going to be a
tempting target for the government's expanded powers, writes Justice
Stephen Breyer. He is joined in a dissent by Justices Ruth Ginsburg,
Sonia Sotomayor, and Elena Kagan. "The Government, after all, seeks to learn
as much as it can reasonably learn about suspected terrorists (such as
those detained at Guantanamo), as well as about their contacts and
activities, along with those of friends and family members," Breyer
writes.
The government's future spying targets can also be reasonably guessed
at based on past behavior, the dissenters suggest. Scott McKay notes
that the US government already "intercepted some 10,000 telephone calls
and 20,000 e-mail communications involving [his client] Mr.
Al-Hussayen." McKay often has to travel abroad to avoid telephonic
communication with foreign clients, which might be intercepted.
While the dissent doesn't express any opinion about the actual merits
of the case, it argues that the plaintiffs should have been allowed to
move forward with their case. The Supreme Court has found standing to
sue in other cases, "where the occurrence of the relevant injury was far
less certain than here," Breyer notes.Further reading: documents from this case are available from privacy-rights group EPIC.